2nd Session, 41st Parliament,
Volume 149, Issue 142
Thursday, May 14, 2015
The Honourable Leo Housakos, Speaker
Anti-terrorism Bill, 2015
Bill to Amend—Second Reading
On the Order:
Resuming debate on the motion of the Honourable Senator Runciman, seconded by the Honourable Senator Beyak, for the second reading of Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.
Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak on second reading of Bill C-51 as well.
I would like to begin by thanking Senator Mitchell for taking on this bill as the critic, as well as Senator Runciman for sponsoring this bill and Senator Lang for all his work during the pre-study of this bill.
I have served in this chamber for 14 years. They have been some of the most rewarding years of my life, but in those years I have never been more concerned for the direction that Canada is taking than I am today. I have never been more concerned for Canadians than I am today.
Honourable senators, the list of problems with Bill C-51 is very long. There are issues with increased information sharing among 17 different agencies; issues with warrants that would violate our Charter; a new civil litigation provision that would remove accountability; new terrorist propaganda provisions that would quell freedom of speech; new no-fly provisions without showing the efficacy of such a list; a lowered threshold for preventative detainment, which would violate the rights of Canadians; unprecedented new disruption powers being given to CSIS; and a severe lack of oversight for this entire program.
From each one of these broad provisions arise yet more issues, all of which will raise more questions than answers. Hopefully some of these questions will be answered during the committee sessions on this bill.
Sadly, there are many more problems with this bill than I have time to cover, so I will be addressing only four of these issues: first, information sharing; second, compensation; third, warrants; and fourth, terrorist propaganda. I will also further look at the issues of trust of all Canadians and radicalization.
On the first issue of information sharing, I want to start by relating to you a story. It is a story of a young man who arrived on Canada’s shores in 1987 from Syria. This man studied in Canada, gained his Canadian citizenship and worked as a telecommunications engineer right here in Ottawa. In 2002, he took his family to Tunisia on a family trip. His return flight passed through New York City, where U.S. authorities detained him and sent him to Syria, where he was tortured. Those U.S. authorities were using information shared with them by the RCMP.
Of course, we all know the story of Maher Arar, but I believe it is worth repeating because it tells us the true cost of sacrificing security for rights. It shows that when we do not balance our security with our rights, we gain neither security nor rights.
Honourable senators, to this day, whenever I see or meet with Mr. Arar, his wife and children, I still see that they suffer daily. I see them still paying the price for our mistake.
Honourable senators, thankfully we were able to bring Maher Arar back to Canada, where he was able to gain some justice for Canada’s role in his rendition. An inquiry was launched to understand what occurred and why, and from that inquiry we were given recommendations on how to improve the Canadian security apparatus. Yet, Bill C-51 does not meet some of the most important recommendations from that inquiry with regard to information sharing and oversight. In fact, Bill C-51 will make it more likely that the injustice that happened to Maher Arar could happen again.
The bill allows for 17 different agencies, most of which have no security training, to share information with Canada’s security apparatus. Our security agencies, like the CBSA — which we found during our pre-study has no real oversight — could then share that information with foreign governments. This would result in exactly the same sort of consequences that the Arar inquiry was commissioned to prevent.
During our pre-study of this bill, I put this question to Canada’s Privacy Commissioner. He explained that among these 17 agencies and our security apparatus, there is no memorandum of understanding.
Honourable senators, imagine; there is no memorandum of understanding on how this information will be shared and how this information will be protected. How are we going to protect our Canadian citizens?
These are the questions we need to address: What information should be shared? Who do we share that information with? Where will that information end up? These are all questions that need to be answered, yet there is nothing in this bill to give that guidance. This can quickly lead to the mistreatment of information.
This brings me to my second point, which is compensation for damages suffered as a result of sharing this information. If a government agency inappropriately shared information with our security apparatus, these agencies would then be protected from any civil litigation. Section 9 of this bill protects persons from civil litigation in relation to good faith information sharing.
This is a government that constantly touts its victim-centric approach to criminality, yet when innocent Canadians fall victim to unjust laws, the government removes their right to compensation. If there were another Maher Arar, he would no longer be compensated for Canada’s role in his rendition. He would have no security, no rights and now no justice.
My third point is on warrants. Bill C-51 will allow CSIS to use warrants to violate our Charter of Rights in an unprecedented manner. There has been a lot of confusion about this provision. I would like to be very clear about the power we would be granting CSIS if this bill were to pass.
Currently, our Charter of Rights and Freedoms protects against unreasonable searches and seizures, and against arbitrary detention. These words, “unreasonable” and “arbitrary,” are qualifiers that protect the rights of all Canadians. However, Bill C-51 would allow CSIS to present a case that would completely remove those clauses.
Michael Spratt of the Criminal Lawyers’ Association put it aptly during our pre-study of Bill C-51 when he stated that this bill:
. . . is asking judges to bless, in advance, a violation of the Charter of Rights in a secret hearing that isn’t subject to appeal, with only the government’s side represented and different from the Criminal Code, with no notice, reporting provisions and little prospect that any violations or problems in that process will come to light.
For each warrant that is struck down in court, that’s the tip of the iceberg. There are hundreds of warrants that we’re not aware of because charges aren’t laid.
There is no way for Canadians to know whether CSIS is going beyond the scope of the warrants that it is seeking or remaining within them. Bill C-51 would give CSIS the power to violate the Charter rights of Canadians without being obligated to report back to the judge about how they used their new-found powers.
Fourthly, Bill C-51 puts a definite chill on freedom of speech by including vague provisions on terrorist propaganda. What we must ask is this: Does such a provision significantly enhance the security of Canadians?
Bill C-51 creates a new offence that would criminalize anyone who possesses or shares “terrorist propaganda,” which is newly defined in this bill. This measure is extremely broad and overreaching.
To give you an example of how broad it can be, honourable senators, in March of this year the Conservative Party put out an advertisement to promote this bill. In it they reproduced part of a video that the terrorist group al Shabaab had made that threatened the bombing of the West Edmonton Mall.
That act would have contravened Bill C-51. If it is that easy for Conservatives to break a law that they are proposing, I worry about how many ordinary Canadian citizens would be unnecessarily swept up by this law.
Combine this with the expanded definition of “terrorism” that this bill creates, which would include things like undermining economic interests of Canada, and we are compelled to ask: How will this affect Canada’s environmental organizations that oppose the Enbridge pipeline in my home province of British Columbia?
I have heard first-hand that Canada’s environmental organizations are concerned about the effects of this bill, particularly after the Minister of Natural Resources once labelled them “radicals” and the PMO labelled them as “enemies of the state” for their opposition to the Enbridge pipeline.
Since when it is acceptable to silence one’s political critics by passing legislation that threatens their arrest? This is not the way in a democracy. This is not the Canadian way.
Today the government is using legislation to divide Canadians rather than bring us together. Time and time again we have seen this government divide Canadians into two camps: either good or evil, either friends or enemies, either with us or against us.
Framing Canadians in such black-and-white terms is simply not the Canadian way. With such a black-and-white outlook, it is worrying that Bill C-51 will make it easier for the government to persecute those who do not follow its political agenda.
I have laid out four definite issues with Bill C-51, but before I conclude there are two more points that I would like to make. The first is on the importance of trust for effective security, and the second is on the understanding of radicalization.
Honourable senators, balancing security with our rights is no easy task, but it is very important to balance our security and our rights. If the balance is not correct, then either we leave Canada vulnerable or we sacrifice the very thing that we are protecting. More than this, we risk the trust of Canadian citizens, the very foundation upon which our democracy is built.
Will Maher Arar regain trust in the Canadian government to protect his rights? What about Abdullah Almalki, Ahmad El Maati, Muayyed Nureddin, Abousfian Abdelrazik and Benamar Benatta? Will they regain that trust? What about their families, their friends?
Each of these individuals was wronged by our security apparatus. In some cases it was simply because they were Muslim or because they came from a particular ethnic background. That is the same security apparatus that we will be giving unchecked new powers to with this bill.
Professors Roach and Forcese speak about the effects this will have on the Muslim community in particular:
It is also difficult to deny that since 9/11 the burden of an expression-based offence will fall disproportionately on Muslim communities. An already difficult social and political climate will become more difficult, potentially undermining considerably the promising counter-violent extremism programs being developed by the RCMP. It is exactly these programs that the research suggests may be the ultimate solution to the violent extremism problem.
Honourable senators, this bill will undermine the outreach work that the RCMP and other intelligence-gathering organizations do by eroding the trust between them and visible minority communities. Rather than feeling more secure, these communities will feel less secure. They know that Canadian laws can be used to target and prosecute them disproportionately.
Already we have a law that would prevent women who wear a niqab from reciting the citizenship oath. We know that the abuse has not stopped. Only recently, Benamar Benatta settled his lawsuit against the federal government over the unlawful treatment he suffered in the days immediately after 9/11.
In order for the RCMP and CSIS to be able to gather real, meaningful intelligence, they must have communities working with them. We all know, honourable senators, that if we are to stay safe, we need intelligence from everyone in the community. We all know as well that the recent cases that have come to our attention have come to our attention because the communities have worked with the RCMP. If you threaten the communities, if you lose the trust of the communities, then we will in fact all suffer from this.
Many of the cases that the RCMP has been able to bring forward are because of the trust that they have built with the communities, the intelligence gathering they do by working with all communities. But when innocent people are arrested, when communities are meant to feel unwelcome and when legislation is enacted that makes it easier to spy on members of some communities, that trust can quickly be eroded. That trust is a key component to quality intelligence gathering.
This brings me to the last point I would like to make. Arresting Canadians will not prevent the process of radicalization from occurring. As Senator Mitchell pointed out, we cannot arrest our way out of this problem.
During the pre-study on this bill, we heard from Canada’s National Security Advisor, as well as from an expert from Quilliam Foundation. Both agreed that this bill would not prevent individuals from becoming radicalized.
In fact, if you remember, yesterday I asked Senator Runciman, the sponsor of this bill —
The Hon. the Speaker: Honourable senator, your time has expired.
Senator Jaffer: May I have five minutes, please?
The Hon. the Speaker: Will the chamber grant Senator Jaffer five more minutes?
Hon. Senators: Agreed.
The Hon. the Speaker: Five minutes.
Senator Jaffer: Thank you.
In fact, I asked Senator Runciman, who is the sponsor of this bill, if there was anything in this bill that would help prevent radicalization. If I remember correctly, he said he did not see anything in this bill that would prevent radicalization.
Honourable senators, if we truly want to prevent radicalization of individuals, then we must make a concerted effort to understand the root causes of radicalization and confront them in a meaningful way.
One of ways that this can be done is through the Cross-Cultural Roundtable on Security. Years ago, I worked extremely hard and I pushed Prime Minister Chrétien and Prime Minister Martin to have round tables where the government could speak directly with leaders in the communities.
In 2013 I asked the present government what happened to the Cross-Cultural Roundtable on Security. When was it planning to meet for the coming year?
Unfortunately, the present government did not respond to my question. While I have heard the Justice Minister claim that the Cross-Cultural Roundtable on Security has met recently, I found out from the Library of Parliament that the last available summary of a meeting on security was from November 3, 2013.
I also asked the Ministers of Justice and the Minister of Public Safety at the pre-study when the last time was that they met with the Cross-Cultural Roundtable on Security. Both ministers decided not to respond to my question.
Honourable senators, if we are going to get trust from the communities, we have to work with the communities. We can no longer ignore some Canadians. All Canadians are equal.
Honourable senators, all of us in this chamber recognize the importance of laws that make Canadians more secure. All of us in this chamber also recognize that what makes Canada the incredible country that it is for us is our culture of equality, free expression and acceptance. What makes Canada what it is today is the rights that are afforded to each and every Canadian.
Honourable senators, we can have security and rights. They are not mutually exclusive. In fact, they complement each other. I hope that some of the issues I have raised can be carefully studied during the committee sessions on this bill.
Honourable senators, I want to put this on the record: I’m hoping — in fact, I’m praying — that we will have extensive hearings on this bill. This bill is a very important bill. It affects the community that I live in. It affects the people that I walk with and it affects people that I work with. I hope, senators, we will not give it short shrift. I hope that we will have extensive hearings because it affects the people that I love.